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A common law view of "carrying on a trade"

  • Authors: Mkonza, Qhinga Aidan
  • Date: 2018
  • Subjects: Business , Common law -- South Africa , Income tax -- South Africa , Agriculture -- Taxation -- South Africa , Property tax -- South Africa , Moneylenders -- Taxation -- South Africa
  • Language: English
  • Type: text , Thesis , Masters , MCom
  • Identifier: http://hdl.handle.net/10962/60888 , vital:27883
  • Description: The term “trade” is defined in very wide terms in the Income Tax Act and includes a “business” and a “venture”. For a taxpayer to claim certain deductions in arriving at taxable income, the taxpayer must be carrying on a trade. The expression “carrying on a trade” is not defined in the Income Tax Act. Whether or not a taxpayer is carrying on a trade is a matter of fact. Case law has established certain principles and tests to be applied in determining whether a taxpayer is carrying on a trade. The goal of the thesis was to determine to what extent an activity can be considered as carrying on a trade. This research focused on the letting of property, money-lending, or farming operations in relation to carrying on a trade or business or engaging in a venture. The thesis also discussed at what stage a taxpayer ceases to carry on a trade and what the tax consequences are of ceasing to trade. An interpretative research approach was used in the research as it sought to understand and describe. No interviews conducted for this research and the data used for the research are publicly available. It was established that “carrying on a trade”, including a business, requires an active step taken by the taxpayer to trade. It involves regularity of buying and selling or rendering of services. The intention to trade is important but it is a subjective matter and cannot be persuasive in determining whether a taxpayer is carrying on a trade; objective factors are also considered. If the stated intention to trade matches the actions of the taxpayer, the taxpayer will be considered to be carrying on a trade. In determining whether a taxpayer is carrying on a trade each case must be considered with its own merits.
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  • Date Issued: 2018

A comparative analysis of the new behaviours and terms introduced in the understatement penalty table in section 223 of the Tax Administration Act

  • Authors: Doolan, Kim
  • Date: 2017
  • Subjects: South Africa. Tax Administration Act, 2011 , Taxation -- South Africa , Taxation -- Law and legislation -- South Africa , Tax administration and procedure -- Law and legislation -- South Africa , Tax penalties -- Law and legislation -- South Africa , Taxpayer compliance -- South Africa
  • Language: English
  • Type: Thesis , Masters , MCom
  • Identifier: http://hdl.handle.net/10962/5802 , vital:20977
  • Description: The Tax Administration Act became effective on the 1 October 2012 and in Chapter 16 introduced the understatement penalty regime which replaced section 76 of the Income Tax Act. The understatement penalty is calculated by applying a percentage in terms of the table included in section 223 of the Tax Administration Act to the shortfall in tax giving rise to the imposition of the penalty. There are five behaviours reflected in the understatement penalty table in section 223, namely, “substantial understatement”, “reasonable care not taken in completing return”, “no reasonable grounds for tax position taken”, “gross negligence” and “intentional tax evasion”. “Substantial understatement” is the only behaviour defined in the Tax Administration Act. Section 222(1) of the Tax Administration Act requires SARS to impose the penalty reflected in the table in the event of an “understatement”, unless the “understatement” results from a “bona fide inadvertent error”. The term “bona fide inadvertent error” is not defined in the Tax Administration Act; neither is the term “obstructive”. The Memorandum on the Objects of the Tax Administration Laws Amendment Bill confirmed that guidance would be developed in this regard for the use of taxpayers and SARS officials. This guidance has not yet been released. Media reports express the view that the lack of definition of the behaviours is problematic for both SARS and taxpayers as the table is new and there is still room for interpretation and understanding of the meaning of each of the behaviours. The primary goal of this study was is to obtain a better understanding of the meaning of the new behaviours and terms introduced in the understatement penalty table. In addressing this main goal, the penalty tables and behaviours in legislation in New Zealand were compared to South Africa’s understatement penalty. The similarities and differences between the understatement penalty imposed in terms of Chapter 16 of the Tax Administration Act and the additional tax previously imposed in terms of section 76 of the Income Tax Act were also discussed to determine whether this would be of assistance in enabling a better understanding of the meaning of the behaviours and terms in section 223. Guidance on the interpretation of the various behaviours and terms was developed and a definition was proposed for the meaning of “bona fide inadvertent error” and “obstructive” to assist in the objective and consistent application of the understatement penalty table in relation to each shortfall identified. The proposed definition for “bona fide inadvertent error” is as follows: “An honest mistake made or simple oversight, which the taxpayer was not aware of, despite taking reasonable care and displaying a prudent attitude while making a genuine attempt to comply with all applicable tax obligations.” The definition for “obstructive” is proposed as: “Deliberately interfering with, causing difficulties (impeding) or delays in, or preventing the progress of a SARS audit or review.”
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  • Date Issued: 2017

A comparative analysis with selected jurisdictions of structural challenges facing the South African office of the tax ombud

  • Authors: Mothiba, Boitumelo Charity
  • Date: 2020
  • Subjects: South Africa. Office of the Tax Ombud , Tax administration and procdure -- South Africa , Taxpayer advocates -- South Africa
  • Language: English
  • Type: text , Thesis , Masters , MCom
  • Identifier: http://hdl.handle.net/10962/140360 , vital:37882
  • Description: The Office of the Tax Ombud is critical in the protection of South African taxpayers' rights. The office has only been in existence for a little over five years and to ensure that it fulfils the purpose for which it was established, it must be properly structured. This includes that it ought to be independent from any external influence and manipulation. Any such external influence on the Tax Ombud creates the risk that the general public will lose confidence in the Tax Ombud as an independent recourse. The study, therefore, is designed to review the structure relating to the independence and powers of the South African Tax Ombud. The study assesses and evaluates the legislative safeguards of the structure of the Tax Ombud office in order to determine whether the legislative framework (the Tax Administration Act) safeguarding the Office of the Tax Ombud is adequate to ensure its independence and also to ensure a strengthened structure, without interference in the decision-making process of the office. To achieve this, a comparative analysis was made with selected foreign institutions of Tax Ombudsmen, or equivalent institutions, in order to draw from the best international practice. The study found that the structure of the Office of the Tax Ombud is relatively weak and does not fully provide the legislative powers to protect taxpayers from the well-resourced South African Revenue Service. The study also revealed that most of the institutional features in the structure of the South African Tax Ombud were found to be in line with standard international practice. The study has made recommendations aimed at strengthening the structure of the South African Tax Ombud by suggesting reforms in the legislative framework of the Tax Ombud.
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  • Date Issued: 2020

A comparative study of tax incentives for small businesses and investors in small businesses in South Africa, Australia, New Zealand, Singapore and Ireland

  • Authors: Horn, Edward Bennet
  • Date: 2018
  • Subjects: Small business -- Taxation -- South Africa , Small business -- South Africa -- Finance , Job creation -- South Africa , Government aid to small business -- South Africa , Tax incentives -- South Africa , Tax incentives -- Australia , Tax incentives -- New Zealand , Tax incentives -- Singapore , Tax incentives -- Ireland
  • Language: English
  • Type: text , Thesis , Masters , MCom
  • Identifier: http://hdl.handle.net/10962/61669 , vital:28047
  • Description: In the South African context, it is accepted that small businesses will be the vehicle for job creation and changing the current business ownership patterns. This is to be achieved by creating access to finance, exploring the role of venture capital and simplifying the tax obligations and the compliance burden. The literature indicates that the current South African tax incentives for small businesses are perceived as unfair and fundamentally ineffective. The objective of this thesis was to compare the tax incentives available to small businesses and investors in small businesses in South Africa to those available in Australia, New Zealand, Singapore and Ireland, in order to identify possible measures that could be introduced in South Africa. In addressing the objective, the research set out to provide, in terms of South African tax legislation, a definition of a small business for tax purposes and document the tax incentives available for start-up and existing small businesses, as well as the tax incentives available for investors in small businesses, either through a venture capital company or a direct investment in small business. It was found that South Africa has a complex and onerous multi-layered approach to classifying a taxpayer as either a “micro business” or a “small business corporation” for the purpose of applying tax incentives. The international jurisdictions included in this research follow a single requirement approach, based on either one or a combination of turnover, balance sheet total or staff headcount. The international jurisdictions provide a wide range of tax incentives to small businesses and investors in small businesses, aimed at reducing taxable income to enable the small businesses to grow and access equity finance. By identifying differences and similarities, a number of possible tax relief measures were recommended that could be introduced in South Africa.
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  • Date Issued: 2018

A comparative study of the tax measures for persons with disabilities in South Africa with those of Canada and the Republic of Ireland

  • Authors: Currie, Natasha
  • Date: 2020
  • Subjects: People with disabilities -- Taxation -- South Africa , People with disabilities -- Taxation -- Law and legislation -- South Africa , People with disabilities -- Taxation -- Canada , People with disabilities -- Taxation -- Law and legislation -- Ireland , People with disabilities -- Taxation -- Ireland
  • Language: English
  • Type: text , Thesis , Masters , MCom
  • Identifier: http://hdl.handle.net/10962/170746 , vital:41956
  • Description: Literature indicates that tax relief measures for persons with disabilities are important as they align with the principle of equity in the allocation of the tax burden. They are a government intervention that assists in decreasing the financial burden of medical care for persons with disabilities. The right of persons with disabilities to an adequate standard of living is contained in the landmark Convention on the Rights of Persons with Disabilities and Optional Protocol, a treaty of the United Nations, which South Africa ratified in 2007. The objective of the research was to provide a comparative study of tax relief measures for persons with disabilities in South Africa with those of Canada and the Republic of Ireland, with a view to identifying potential areas for improvement in South Africa. The requisite information was primarily collected through an extensive analysis of the tax legislation in the jurisdictions. The research found that tax relief measures for persons with disabilities and their families in South Africa are limited when compared with those of Canada and the Republic of Ireland. The comparative study identifies a number of potential tax relief measures for implementation in South Africa.
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  • Date Issued: 2020

A comparison between the South African "source rules" in relation to income tax and the "permanent establishment rules" as contained in double taxation agreements

  • Authors: Fourie, Leonie
  • Date: 2008
  • Subjects: Income tax -- South Africa , Income tax -- Law and legislation -- South Africa , Double taxation -- South Africa , Business enterprises -- Taxation -- South Africa
  • Language: English
  • Type: Thesis , Masters , MCom
  • Identifier: vital:905 , http://hdl.handle.net/10962/d1008203
  • Description: South Africa's right to tax the income of a non-resident is determined in terms of the South African "source rules" established by court decisions in relation to the imposition of tax in terms of the Income Tax Act. Unless a non-resident's income is captured by the South African "source rules" (on the basis that hi slits income is derived from a South African source), South Africa would have no right to tax such income, even if such non-resident creates a permanent establishment in South Africa by performing business activities within South Africa which could be considered essential (but not dominant) in nature. In such scenario the activities performed by the non-resident in South Africa may utilise the natural resources and the infrastructure of South Africa, but the South African fiscus would be deprived of the right to any tax revenues attributable to the income produced partly by such activities within South Africa. The South African "source rules" refer only to the main or dominant activities giving rise to the income for the purpose of determining the source of such income (and accordingly the right to tax such income). On the other hand, the "permanent establishment rules" as set out under the Organisation for Economic Cooperation and Development Model Tax Convention on Income and on Capital refer to all the taxpayer's essential business activities for the purpose of determining whether or not such activities create a pennanent establishment. The result of the narrow nature of the South African "source rules" is that, under certain circumstances, the South African fiscus would not necessarily be granted the right to tax all income produced partly within South Africa. The research demonstrated that incorporating the principles underlying the "pennanent establishment rules" into South African legislation would be a reasonable and logical solution to the problem of detennining the source of income. In so doing, the South African "source rules" would determine the source of income, and consequently South Africa's taxing rights, with reference to the essential business activities giving rise to such income. In such case South Africa would be afforded the right to tax the income of a non-resident in the event that it performs any of its essential business activities within South Africa, albeit not the dominant or main activities giving rise to the income.
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  • Date Issued: 2008

A comparison of the effectiveness of the judicial doctrine of "substance over form" with legislated measures in combatting tax avoidance

  • Authors: Weston, Tracey Lee
  • Date: 2004
  • Subjects: Income tax -- South Africa Income tax -- Law and legislation -- South Africa Income tax -- Law and legislation -- Great Britain Tax evasion -- Great Britain Tax evasion -- South Africa Tax administration and procedure -- South Africa Tax administration and procedure -- Great Britain Tax planning -- South Africa Tax planning -- Great Britain Taxation -- Law and legislation -- South Africa Taxation -- Law and legislation -- Great Britain
  • Language: English
  • Type: Thesis , Masters , MCom
  • Identifier: vital:892 , http://hdl.handle.net/10962/100
  • Description: Taxation statutes often provide opportunities for tax avoidance by taxpayers who exploit the provisions of the taxing statute to reduce the tax that they are legally required to pay. It is, however, important to distinguish between the concepts of tax avoidance and tax evasion. The central issue, especially where the contract has no business purpose, is whether it is possible for the substance and legal form of the transaction to differ to such an extent that a court of law will favour the substance rather than the legal format. The debate is whether the courts should be encouraged to continue with their "judge-made" law or whether the tax jurisdictions should be supporting a legislative route as opposed to a judicial one, in their efforts not only to combat tax avoidance but also to preserve taxpayer certainty. The question is whether the Doctrine of "Substance over Form" as applied by the judiciary is effective in combating tax avoidance, or whether a legislated general anti-avoidance provision is required. An intensive literature survey examines the changes which have occurred in the application of judicial tests from the 1930's to date and investigates the different approaches tax jurisdictions follow in order to combat tax avoidance. The effect of the introduction of anti-avoidance provisions in combating tax avoidance is evaluated by making a comparison between the United Kingdom and South Africa. [n the United Kingdom, the courts are relied on to create anti-tax avoidance rules, one of which is the Doctrine of "Substance over Form". The doctrine is very broad and identifies various applications of the doctrine, which have been developed by the courts. In South Africa, the Doctrine of "Substance over Form" has been applied in certain tax cases; however the South African Income Tax Act does include anti-tax avoidance sections aimed at specific tax avoidance schemes, as well as a general anti-tax avoidance measure enacted as section 103. The judicial tests have progressed and changed over time and the introduction of anti-avoidance legislation in the Income Tax Act has had an effect on tax planning opportunities. A distinction needs to be made between fraudulent and bona fide transactions while recognising the taxpayer's right to arrange his or her affairs in a manner which is beneficial to him or her from a tax perspective. Judicial activism and judicial legislation in the United Kingdom has created much uncertainty amongst taxpayers and as a result strongly supports the retention of a general anti-avoidance section within an Income Tax Act. A general anti-avoidance provision, following a legislative route, appears to be more consistent and effective in combating tax avoidance.
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  • Date Issued: 2004

A critical analysis of the concept and extent of base erosion and profit shifting, and its impact on South Africa versus Australia

  • Authors: Basnett, Robyn
  • Date: 2016
  • Language: English
  • Type: Thesis , Masters , MCom
  • Identifier: http://hdl.handle.net/10962/4037 , vital:20592
  • Description: Tax avoidance by multinational enterprises is the focus of much media and political scrutiny. It is also the subject of a major Organisation for Economic Co-operation and Development (OECD) project called Base Erosion and Profit Shifting (BEPS). The objective of this thesis was to gain a greater understanding of BEPS, particularly in a South African and Australian context, and to determine whether BEPS is as great a problem as the OECD portrays. A detailed analysis of the OECD BEPS Report and Action Plan was undertaken to understand what the term BEPS means. A review of current BEPS literature was then performed toassess the extent of BEPS. This was followed by a comparative analysis of South Africa and Australia, including a comparison of their tax systems and various economic indicators. It was found that there is no simple definition of BEPS. It encompasses the spectrum of international tax planning strategies used by multinational enterprises. Furthermore, these tax strategies are usually legal, which makes measuring the extent of BEPS conceptually difficult. Despite being legal, many observers believe that BEPS behaviour by multinational enterprises is ethically unacceptable. This thesis also discussed the ethics of tax avoidance, and argued that countries should assess BEPS with reference to the many benefits which multinationals bring to a country. The benefits of multinational enterprise activity are especially important to developing countries like South Africa. Despite similar tax systems, South Africa and Australia vary greatly in terms of their economic and social position. This thesis concluded that South Africa, as a developing country, is more likely than Australia to tolerate BEPS behaviour in order to maintain or even attract foreign investment. The OECD Action Plan calls for urgent internationally coordinated actions against BEPS. It appears, however, that much more research is needed on the nature and extent of BEPS before countries formulate their response. This thesis acknowledges that aggressive tax planning by multinational enterprises does exist, but suggests that countries approach BEPS, and any estimates of its extent, with a degree of caution.
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  • Date Issued: 2016

A critical analysis of the deductibility for income tax purposes of dual-purpose expenditure

  • Authors: Pickup, Richard Kenneth
  • Date: 2016
  • Language: English
  • Type: Thesis , Masters , MCom
  • Identifier: http://hdl.handle.net/10962/4155 , vital:20628
  • Description: This thesis critically analysed the apportionment of dual-purpose expenditure. In doing so, two categories of dual-expenditure were examined: expenditure that has been incurred for both trade and non-trade purposes, and expenditure that has been incurred to produce both taxable and exempt income. In conducting this analysis, this thesis set out to answer three questions: has the apportionment of dual-purpose expenditure been officially sanctioned in South Africa, when does the need for apportionment arise, and on what basis should a taxpayer apportion expenditure that has been incurred for a dual purpose? A doctrinal methodology was applied to the documentary data which consisted of relevant tax legislation; South African, Australian and English case law; and commentary of experts in the field of tax law. From the analysis performed, it was revealed that the apportionment of dual-purpose expenditure has been officially sanctioned in South Africa. In addition, it was concluded that the applicable legal principles for determining the need for apportionment and for performing the apportionment calculation are clear and well-established. The difficulty which taxpayers, the courts and the South African Revenue Service face, however, is applying these principles in practice. This research therefore concluded that there is a need for further guidance in this complex area of tax law. In addition, this research proposed some recommendations which could provide more certainty and clarity.
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  • Date Issued: 2016

A critical analysis of the deductibility of bad debts for income tax purposes

  • Authors: Naidu, Aveshni
  • Date: 2018
  • Subjects: Collecting of accounts -- South Africa , Tax deductions -- South Africa , South Africa. Income Tax Act, 1962
  • Language: English
  • Type: text , Thesis , Masters , MCom
  • Identifier: http://hdl.handle.net/10962/61712 , vital:28051
  • Description: The objective of this thesis was to critically analyse the deductibility of bad debts for income tax purposes. This was achieved by applying a doctrinal research methodology to the data, which consisted of local and international legislation and case law, as well as other relevant writings. In setting out to achieve this primary objective, this thesis addressed certain subsidiary goals. The requirements of section 11 (i) of the South African Income Tax Act that provides for the deduction of bad debts were examined with reference to local case law, together with case law from selected international jurisdictions. To clarify the requirement of section 11 (i) that a debt must have become bad, this thesis set out to ascribe a meaning to the term “bad debt” which is currently not defined in the South African Income Tax Act and to ascertain the principles applicable in determining when a debt will be regarded as having become bad. The research also addressed the timing in relation to the identification of a debt as bad, as well as other commercial considerations. This research concluded that there is a need for further guidance in this area and provided brief recommendations that could provide more certainty in relation to the deductibility of bad debts.
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  • Date Issued: 2018

A critical analysis of the practical man principle in Commissioner for Inland Revenue v Lever Brothers and Unilever Ltd

  • Authors: Grenville, David Paul
  • Date: 2014
  • Subjects: Unilever (Firm) , South African Revenue Service , Taxation -- Law and legislation -- South Africa , Income tax -- Law and legislation -- South Africa -- Cases , Income tax -- South Africa -- Cases , Business enterprises -- Taxation -- South Africa , Law -- South Africa -- Philosophy
  • Language: English
  • Type: Thesis , Masters , MCom
  • Identifier: vital:909 , http://hdl.handle.net/10962/d1013238
  • Description: This research studies the practical person principle as it was introduced in the case of Commissioner for Inland Revenue v Lever Brothers and Unilever Ltd 1946 AD 441. In its time the Lever Brothers case was a seminal judgment in South Africa’s tax jurisprudence and the practical person principle was a decisive criterion for the determination of source of income. The primary goal of this research was a critical analysis the practical man principle. This involved an analysis of the extent to which this principle requires judges to adopt a criterion that is too flexible for legitimate judicial decision-making. The extent to which the practical person principle creates a clash between a philosophical approach to law and an approach that is based on common sense or practicality was also debated. Finally, it was considered whether adopting a philosophical approach to determining the source of income could overcome the problems associated with the practical approach. A doctrinal methodology was applied to the documentary data consisting of the South African and Australian Income Tax Acts, South African and other case law, historical records and the writings of scholars. From the critical analysis of the practical person principle it was concluded that the anthropomorphised form of the principle gives rise to several problems that may be overcome by looking to the underlying operation of the principle. Further analysis of this operation, however, revealed deeper problems in that the principle undermines the doctrine of judicial precedent, legal certainty and the rule of law. Accordingly a practical approach to determining the source of income is undesirable and unconstitutional. Further research was conducted into the relative merits of a philosophical approach to determining source of income and it was argued that such an approach could provide a more desirable solution to determining source of income as well as approaching legal problems more generally.
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  • Date Issued: 2014

A critical analysis of the South African turnover tax system

  • Authors: Chiromo, Samuel John
  • Date: 2020
  • Subjects: Small business -- Taxation -- South Africa , Small business -- South Africa -- Finance , Turnover tax -- South Africa , Government aid to small business -- South Africa , Tax incentives -- South Africa
  • Language: English
  • Type: text , Thesis , Masters , MCom
  • Identifier: http://hdl.handle.net/10962/166103 , vital:41329
  • Description: The objective of the turnover tax system is to reduce the administrative burden on micro businesses and to contribute positively to boosting these businesses and the economic growth of South Africa. The over-arching goal of this research was to analyse the South African turnover tax to investigate to what extent the turnover tax system complies with generally accepted principles of a good tax system. The research was conducted within an interpretative post-positivism paradigm, applied a qualitative research methodology, and a doctrinal research method. A detailed review of the literature was conducted to establish the nature of South African turnover tax system and the extent of its compliance with generally accepted principles of a good tax system. The literature review included an in-depth analysis of the South African turnover tax system, an in-depth analysis of generally accepted principles of a good tax system, and an investigation of the extent to which turnover tax system complies with various elements of the principles of a good tax system. It was found in this study that the turnover tax system does not comply with certain of the elements of generally accepted principles of a good tax system and the study proposed several recommendations for the improvement of the turnover tax system. These recommendations include the establishment of training initiatives for micro business owners, reviewing the regulations pertaining to turnover tax and providing digital administration of turnover tax.
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  • Date Issued: 2020

A critical analysis of the tax concessions relating to medical expenses, with particular emphasis on persons with a physical impairment or disability

  • Authors: Rogers, Richard
  • Date: 2016
  • Language: English
  • Type: Thesis , Masters , MCom
  • Identifier: http://hdl.handle.net/10962/4144 , vital:20623
  • Description: This thesis provides a critical analysis of the tax concessions granted in respect of medical costs, with particular reference to persons with a physical impairment or “disability” in the South African context. The primary method of collecting information for this research was through an extensive analysis of the South African legislation that is specifically applicable to a person who has a physical impairment or a “disability”. The analysis placed particular emphasis on the qualifying diagnosis criteria for a “disability” as defined for tax purposes as well as on the qualifying expenditure incurred in consequence of a person’s physical impairment or “disability”. A further goal of the research was to analyse the specific provisions of the Income Tax Act that are applicable to a special trust created for the benefit of a person with a physical impairment or “disability”. This research also includes a brief evaluation of the extent to which medical schemes provide coverage for non-discretionary expenditure items incurred in consequence of a person’s “disability” and whether this differs from the qualifying expenditure in terms of the Income Tax Act. It is important to conduct research of this nature in order to identify areas where the legislation could be improved. Accordingly, the thesis also recommends possible amendments to the current provisions of the legislation that are specifically applicable to persons with a physical impairment or “disability”.
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  • Date Issued: 2016

A critical analysis of the tax consequences of debt reductons, in the context of insolvency, death and the liquidaton of a deceased estate

  • Authors: Simango, Samuel
  • Date: 2014
  • Language: English
  • Type: text , Thesis , Masters , MCom
  • Identifier: http://hdl.handle.net/10962/54464 , vital:26567
  • Description: The present research was conducted in an effort to address certain problems and a legal anomaly that is specifically related to the tax treatment of reduced debts stemming from the death or insolvency of natural persons in South Africa. At the beginning of 2013 the National Treasury enacted certain amendments to the debt reduction provisions of the Income Tax Act 58 of 1962 with the intention of streamlining the tax treatment of reduced debts and granting debt relief to financially distressed debtors. In spite of these recent amendments to the provisions of the Income Tax Act, there are certain problems and a legal anomaly which still currently relate to the tax consequences of reduced debts in South Africa. These problems and the legal anomaly are based on the failure of the recent amendments to successfully address debt reduction which arises in the context of the death and/or insolvency of natural persons. The objective of this research was therefore to analyse the tax consequences of reduced debts arising in the context of the death and the insolvency of natural persons and to explain how the problems and legal anomaly associated with these tax consequences can be rectified. The research design was qualitative within the framework of an interpretive paradigm. A mixed methodology approach was followed as identified in the Arthurs Report (1983), namely the interdisciplinary and the doctrinal methodologies. This approach encompassed two legal research methods namely the expository and legal reform research methods. The research explained the underlying nature of the tax consequences of reduced debts arising in the context of the death and the insolvency of natural persons and formulated specific reform measures aimed at remedying the problems and the legal anomaly that currently exist. Two amendments were proposed. It was proposed that the tax liability which arises when debts are reduced through the wills of deceased persons and the reduction of debts stemming from the insolvency of natural persons should be expressly excluded from falling within the ambit of the provisions which give rise to tax consequences whenever debt reduction takes place.
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  • Date Issued: 2014

A critical analysis of the tax treatment of cryptocurrencies in a South African context

  • Authors: Ho, Dau-Ming
  • Date: 2022-10-14
  • Subjects: Cryptocurrencies Taxation , Income tax Law and legislation South Africa , Income tax Law and legislation Australia , Financial services industry Security measures , South Africa. Income Tax Act, 1962
  • Language: English
  • Type: Academic theses , Master's theses , text
  • Identifier: http://hdl.handle.net/10962/357504 , vital:64749
  • Description: The aim of the present research was to investigate whether, as claimed by the South African Revenue Service in the media release issued in April 2018, the normal income tax provisions could apply to cryptocurrency transactions. To achieve this aim, a literature review was undertaken to describe the nature of cryptocurrencies and related crypto mining activities, providing definitions of cryptocurrencies, blockchains and crypto mining, as well as describing the functioning of the system. The research then proceeded to analyse the provisions of the definition of “gross income” in section 1 of the Income Tax Act, 58 of 1962, as amended, and the requirements of the “general deduction formula” in terms of the preamble to section 11, section 11(a) and section 23(g), as applying to cryptocurrency transactions. The application of other provisions in the Act to cryptocurrency transactions was analysed, including trading stock in terms of section 22, and capital allowances in terms of sections 11(e), 12C and 13quin of the Act, together with capital gains tax consequences in terms of the Eighth Schedule to the Income Tax Act. The regulation for income tax purposes of cryptocurrency transactions in Australia was discussed, with a view to making similar recommendations in South Africa. The research was situated in the interpretative paradigm, a doctrinal methodology was applied, together with a qualitative analysis of documentary data. The discussion was limited to the income tax consequences of cryptocurrencies as applying to individuals. The findings of the research were that, in general, the normal income tax provisions could apply to cryptocurrency transactions, but based on the analysis of the South African and Australian income tax acts as they apply to cryptocurrencies, it was recommended that a Comprehensive Guide on the income tax consequences of cryptocurrency transactions should be issued by the South African Revenue Service, together with amendments to section 25D and paragraph 43 of the Eighth Schedule to the Income Tax Act to deal with the conversion of cryptocurrencies to Rand values, and to section 9C of the Income Tax Act to include the deemed capital nature of the disposal of cryptocurrencies in the three-year rule presently applying to equity shares. , Thesis (MCom) -- Faculty of Commerce, Accounting, 2022
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  • Date Issued: 2022-10-14

A critical analysis of the taxation of financial assets and financial liabilities in terms of section 24JB of the South African Income Tax Act

  • Authors: Snyman, S L
  • Date: 2016
  • Language: English
  • Type: Thesis , Masters , MCom
  • Identifier: http://hdl.handle.net/10962/4178 , vital:20630
  • Description: Section 24JB of the Income Tax Act No. 58 of 1962 was introduced with effect from 1 January 2014 in order to govern the taxation of financial instruments of a covered person as defined. Section 24JB represents a significant departure from the standard tax principles for financial instruments and will therefore directly affect the timing of the imposition of tax on gains and losses on these financial instruments, resulting in a significant adverse cash flow effect for the taxpayer. The main purpose of the research is to investigate the meaning of the wording in section 24JB through a critical analysis of the domestic tax legislation in the context of practical examples of specific financial assets and liabilities. The research includes an analysis of the scope of section 24JB by examining the definition of a “covered person” as well as the specific financial instruments to which the section applies, with reference to the International Financial Reporting Standards classifications and terms. The interaction of section 24JB with the rest of the Act is examined and whether this section overrides all the other provisions, specifically with reference to the taxation of dividends and the general and specific anti-avoidance provisions contained elsewhere in the Act. The study aims to highlight anomalies and possible unintended tax consequences arising from the current drafting of section 24JB using practical examples, highlighting the major areas of concern and issues of interpretation of section 24JB. Recommendations are made for amendments to the Act or the provision of guidance in the form of an Explanatory Memorandum or Interpretation Note to be issued by SARS.
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  • Date Issued: 2016

A critical evaluation of inter-jurisdictional rules in the South African value-added tax system

  • Authors: Schneider, Ferdinand Dirk
  • Date: 2017
  • Language: English
  • Type: Thesis , Doctoral , PhD
  • Identifier: http://hdl.handle.net/10962/7971 , vital:21329
  • Description: This study analysed the current inter-jurisdictional rules in the South African Value-Added Tax (VAT) system, identified shortcomings, and proposed legislative amendments or additions to address these shortcomings. The research was conducted within an interpretative post positivism paradigm, applied a qualitative research methodology, and a doctrinal research method. A detailed review of the literature was conducted to establish the theoretical basis of a good tax system and the theory underpinning indirect and consumption taxation. The literature review also included an in-depth analysis of the South African VAT system and its treatment of resident and non-resident businesses with a South African physical or economic reach, and its treatment of local and cross-border transactions, including imported services. The literature review also considered the international VAT treatment of these transactions. To obtain a wider range of expert opinions regarding shortcomings in inter-jurisdictional rules in the South African VAT system, data was collected through structured interviews with South African and global VAT and indirect tax experts, using a questionnaire that was specifically designed for this purpose. This study proposed amendments and additions to the VAT Act, dealing with the VAT registration of non-resident suppliers; addressing various issues relating to the interjurisdictional VAT rate; proposing measures in connection with imported services; and legislating the intention of the legislator to tax final utilisation or consumption. The study finally recommended the introduction of a general place of supply rule linked to residency; specific place of supply rules for electronic, broadcasting, and telecommunication services; and zero rating provisions for electronic, broadcasting, and telecommunication services provided to non-resident suppliers by resident suppliers for services initiated outside South Africa.
  • Full Text:
  • Date Issued: 2017

A discussion and comparison of company legislation and tax legislation in South Africa, in relation to amalgamations and mergers

  • Authors: Sloane, Justin
  • Date: 2014
  • Subjects: Corporation law -- South Africa , Taxation -- Law and legislation -- South Africa , Consolidation and merger of corporations -- South Africa , Income tax -- South Africa , Capital gains tax -- South Africa , Value-added tax -- South Africa
  • Language: English
  • Type: Thesis , Masters , MCom
  • Identifier: vital:908 , http://hdl.handle.net/10962/d1013028
  • Description: In his 2012 Budget Review, the Minister of Finance, Pravin Gordhan acknowledged that the introduction of the "new" Companies Act had given rise to certain anomalies in relation to tax and subsequently announced that the South African government would undertake to review the nature of company mergers, acquisitions and other restructurings with the view of possibly amending the Income Tax Act and/or the "new" Companies Act, to bring the two legislations in line with one another. These anomalies give rise to the present research. The literature reviewed in the present research revealed and identified the inconsistencies that exist between the "new" Companies Act, 71 of 2008 and the Income Tax Act, 58 of 1962, specifically the inconsistencies that exist in respect of the newly introduced amalgamation or merger provisions as set out in the "new" Companies Act. Moreover, this research was undertaken to identify the potential tax implications insofar as they relate to amalgamation transactions and, in particular, the potential tax implications where such transactions, because of the anomalies, fall outside the ambit section 44 of the Income Tax Act, which would in normal circumstances provide for tax "rollover relief". In this regard, the present research identified the possible income tax, capital gains tax, value-added tax, transfer duty tax and securities transfer tax affected by an amalgamation transaction, on the assumption that the "rollover relief" in section 44 of the Income Tax Act does not apply.
  • Full Text:
  • Date Issued: 2014

A discussion of the concept, “place of effective management” and the proposed changes, in the context of South African tax law

  • Authors: Singh, Nishika
  • Date: 2016
  • Language: English
  • Type: Thesis , Masters , MCom
  • Identifier: http://hdl.handle.net/10962/4166 , vital:20629
  • Description: The concept, “place of effective management”, is used in South African tax legislation to determine the residency of companies and it is also used by the Organisation for Economic Co-operation and Development (OECD) and in many tax treaties as a tie-breaker clause to determine the residency of companies that may appear to be dual resident or to determine which country has the taxing rights to income that may be subject to double tax due to the income being from a source outside of the company’s country of residence. The concept is not defined in any tax legislation and there is no uniform interpretation of the concept globally. The former guidance provided by the South African Revenue Services (SARS) adopted a hierarchal approach and the focus was the implementation of the Board of Directors’ decisions. This interpretation was not aligned to the guidance of the OECD whose focus is the place where the key management and commercial decisions of the entity are made. The current SARS guidance has been aligned to the OECD guidance and, essentially, the core principle is to determine who makes the key commercial and management decisions of the company and the place where these individuals are making these decisions. The current SARS and OECD guidance have now been aligned. The current SARS and OECD interpretations have been found to be a more effective tie-breaker clause than the former interpretations.
  • Full Text:
  • Date Issued: 2016

A financial planning model for retirement, taking into account the impact of pre-retirement funding income, age and taxation

  • Authors: Barnes, Andrew
  • Date: 2006
  • Subjects: Retirement -- South Africa Retirement income -- Planning -- South Africa Pensions -- Planning -- South Africa Finance, Personal Investments Income tax -- Law and legislation -- South Africa
  • Language: English
  • Type: Thesis , Masters , MCom
  • Identifier: vital:895 , http://hdl.handle.net/10962/d1004532
  • Description: Individuals are often not aware of the required level of contributions needed to fund a retirement savings plan. This problem is compounded by the fact that the assistance provided to these individuals by way of commercially-available retirement planning models does not take into account the effect of income tax on the level of required retirement savings contributions and recent changes in the tax legislation to the income tax payable by individuals has had a significant effect on these required levels. As a preamble to the research process, an exploratory questionnaire was administrated to a sample of individuals, which was designed to measure the level of awareness of these individuals of the contributions to a retirement savings plan needed to fund their postretirement financial needs, and of the impact of age, the level of income and income tax on their contributions. Responses to the questionnaire indicated a low level of awareness of retirement planning amongst these individuals. A retirement planning model was then designed to test the effect of earnings, age and changes in tax legislation on the level of an individual's required monthly contributions to a retirement savings plan. Independent variables of age and income were processed using the model. These same variables were then processed using the Old Mutual and Liberty Life retirement planning models and a comparison was made between the model developed in the research and these commercially developed models, to assess their usefulness and limitations. Based on the above comparison, it appeared that the Old Mutual and Liberty Life retirement models both included the effects of the individual marginal tax rates in their calculations. However, they appeared to be using marginal tax rates which were higher than those reflected in the 2006 individual income tax tables. In addition these models did not include the effect of income tax exemptions and deductions and they therefore provided more conservative estimates than the retirement planning model designed in the research. Recent tax adjustments have had the effect of greatly increasing the after-tax income of individuals and therefore it is important to include the effects of changes in tax legislation in determining the monthly contributions to a retirement savings plan.
  • Full Text:
  • Date Issued: 2006
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